January: The Month for Divorce

In recent years, January has been nicknamed “Divorce Month” in legal circles. According to an article on CHCH-TV website, experts say there are 25% more divorces started in that month than any other.[1] Why is it this month is more popular than any other?

Every New Year brings a fresh start and with it, New Year’s resolutions. It’s at this time that couples re-evaluate their lives and contemplate their futures. For some people the prospect of living another whole year in an unhappy situation seems daunting and unbearable. Sometimes what’s needed is a significant life change, and often that involves separating from a spouse. Usually most individuals have been considering divorce for quite some time, but the New Year presents an opportunity to give them the necessary push to take action.

Another reason January is one of the biggest months for divorce is a reluctance to break up the family during the holidays. Some individuals don’t want to be perceived as heartless for initiating proceedings during the holiday season and resign themselves to getting through one last Thanksgiving or Christmas. For couples with children, the prospect of sitting your children down and telling them that their parents are getting divorced is overwhelming to say the least. This proves even more difficult when the holidays are involved. Rather than “ruin” the holidays with their bad news, parents often decide to wait until after the holidays to have that conversation.

Whatever their motivation, January sees an influx of people visiting lawyers to discuss divorce. These initial consultations can take many different forms. Sometimes they are general information sessions for people, who may or may not have even separated from their spouse yet, just starting to consider the option of divorce. Other times, these initial consultations are more extensive and involve individuals who have been separated for a number of years and are eager to get the divorce process started and ultimately finalized. Regardless of the circumstances, there are a few common questions that lawyers are typically asked.

What are my first steps?

For those individuals contemplating divorce, there is no need to start divorce proceedings right away. The main ground for getting a divorce in Canada is that spouses have lived separate and apart for at least one year. Although property and support issues can be addressed prior to this timeframe, parties will not be able to apply to the court for a divorce judgment before the expiration of the one year period. The Divorce Act also sets out that spouses may reconcile for up to 90 days without disrupting the one-year calculation period. This allows couples an opportunity to potentially work out some of their concerns and remain married.

Because divorce significantly changes parties’ rights and responsibilities towards one another and every situation is unique, spouses should seriously contemplate speaking to a lawyer and other professionals, such as a marriage counsellor, financial advisor, etc. for a range of options and advice on how best to proceed in your individual circumstance.

How long will this take?

Unfortunately, there is no easy answer to this question and it ultimately depends on a number of factors, including the relationship between the parties, the length of the marriage, the extent of matrimonial property involved, whether or not there are children and support issues that may need to be addressed, among several others. The Edmonton Student Legal Services website estimates that uncontested divorces will generally take between 6 months to one year, whereas a contested divorce can take up to several years.[2] However, if parties are amicable and willing to cooperate towards a mutually satisfactory resolution, this can significantly reduce the timeline and costs for everyone involved.

I don’t want to go to court. What are my other options?

A large majority of divorces are finalized without ever seeing the inside of a courtroom. In fact, lawyers have a duty under the Divorce Act to advise their clients of Alternative Dispute Resolution (ADR) processes that parties can explore as alternatives to litigation. Some of the more popular options are mediation, arbitration and judicial dispute resolution. For an excellent article on the benefits of mediation, please read my colleague Ms. Paula J. Kinoshita’s article entitled “Why I Advocate for Mediation.”

Some of the notable advantages of ADR processes over trials are: they are private and confidential, they are often less costly, they can be informal and less stressful, and they allow parties to be creative in coming up with their own viable solutions. Because of this, resolutions achieved through ADR processes tend to be on the whole more satisfactory to parties.

Prior to entering the litigation realm, lawyers will often engage in four-way meetings with their client, the other party, and his or her respective legal counsel, in an attempt to reach a negotiated resolution. A settlement can also be negotiated using written correspondence, but a four-way meeting is usually the most time efficient. If parties are able to come to an agreement, the negotiated terms will then be drafted into a formal, legally-binding Minutes of Settlement Agreement.

On February 4, 2017, individuals will have a unique opportunity to attend the first-ever Divorce Symposium at the Edmonton Expo Centre. This conference will include a comprehensive list of professionals who will provide participants with a wealth of information on the divorce process from a holistic perspective. The goal of the Symposium is to bring to attendee’s awareness that although lawyers may be the first individuals that come to mind when contemplating divorce, other professionals are just as crucial to a “successful” resolution. Successful in this sense means that parties are able to maintain a communicative relationship for the benefit of their children and move on from the relationship in a healthy way without bitterness and hatred.

The Symposium will feature a number of key-note speakers and round-table breakout sessions. I will be attending as a round-table representative of the family law/real estate lawyer group. Other professionals that will be attending the conference include: grief counsellors, financial planners, mortgage brokers, insurance advisors, and divorce coaches. For more information about the event or to order tickets, please visit the Divorce Symposium website at www.divorcesymposium.ca/edmonton-symposium/.

Dayna Kwasney

[1] “First Monday after New Years is known as ‘Divorce Day’” (December 29, 2016), online: <http://www.chch.com/first-monday-new-years-known-divorce-day/>.

NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.